Professional Documents
Culture Documents
Western Thrace or simply Thrace is located between the Nestos and Evros. Together with the regions of Macedonia and Epirus, it is often referred to informally as northern Greece. It is also called Greek Thrace to distinguish it from Eastern Thrace, which lies east of the river Evros and forms the European part of Turkey, and the area to the north, in Bulgaria, known as Northern Thrace.
2
abovementioned legal issues, the Muslims can choose either the civil court or the Muftis legal services. Actually, in most of the cases, they choose the judgement of the Mufti. This special legal system of concurrent jurisdiction, as defined by the EU, is a matter of controversy among Greek lawyers and human rights organisations. The vexed question has been whether Shariah family law contains, essentially, discriminatory provisions which violate human rights, particularly womens rights. On the subject of womens rights, the application of Shariah law in the area of Western Thrace seems to be in conflict with the provisions of the Greek Constitution and legislation. Additionally, it violates fundamental human rights which fight against all forms of discriminatory treatment towards women. This situation has created a legal and fundamental dilemma; On the one hand, there is the need to protect the religious freedom of the Muslim minority, in accordance with its own cultural and traditional values. On the other hand, it is necessary to ensure conformity with the cardinal rules of human rights, both on a European and on an international level, including the right to religious tolerance. Is it possible for all these conditions to coexist simultaneously? The purpose of this assignment is to illustrate the paradox of the application of Islamic law in Greece, an EU member state, and the contradiction being created.
The Muslim minority of Thrace has historically emerged from the Ottoman Empires demise and the creation of a new Turkish nation. The Treaty of Lausanne (1923) established the obligatory population exchange between Christian Greek populations which were situated in the borders of the new Turkish nation, with the Islamic Turkish populations which lived on Greek soil. The Greek minority of Constantinople was excluded from this pact, as well as the Islamic minority of Thrace, which at the time numbered 86,000 people. Out of the latter, 39,000 were of Turkish descent, 30,000 were Pomaks and 12,000 were Gypsies (Rom). The Treaty of Lausanne declares that Muslim minority members are free to state their ethnic background (Turkish, Pomak or Rom), speak their native languages, practice their religious tasks and maintain their customs and traditions.
system offered religious minorities the ability to regulate many of their own affairs and legal issues, under their own ethics and religious customs. In 1926, the millet system was completely abolished in Turkey, despite the specific provisions from the Lausanne Treaty, which clearly stated that Greece and Turkey must implement measures in order to ensure that all issues with regard to the personal status of the minorities would be resolved in line with their religious customs.5 In order for this to actually happen, the minorities were asked to consent to the revocation of their special status, which they did. Nevertheless, A. Bedermacher- Gerousis claims that the consent of the minority was null and void and therefore Turkey violated the international obligation of the Lausanne Treaty.6 An outstanding paradox is that Turkey, with its primarily Muslim population, has abolished the millet system in which religious courts were acceptable, but Greece a EU country, with an Orthodox population, still supports it in Western Thrace. According to Tsitselikis, the Islamic legal regulation of personal status, in Thrace, converts the old-fashion millet into an enclave of postmodern religious society, creating in fact a neo-millet system, in which Greek civil law has a secondary role.7
AspasiaTsaoussi and Eleni Zervogianni Tsaoussi, A. and Zervogianni, E. (2008), Multiculturalism and Family Law: The Case of Greek Muslims, European Challenges in Contemporary Family Law, Katharina Boele-Woelki and Tone Sverdrup, eds., Intersentia: Mortsel, p.211
6
Tsitselikis, K, The legal status of Islam in Greece, Die Welt des Islams No:44, 3, Brill Academic Publishers: Leiden 2004, p.130
either of the parties as a legal advice, which could favour either the defendant or the plaintiff.8 After Greece annexed most of the European territory which previously belonged to the Ottoman Empire, in 1881, the Greek authorities assigned the functions of the Mufti as well as the ones of the qdi to the new Mufti. Put differently, the Mufti had, from now on a dual role; he was both a scholar giving the fatw, and the judge carrying his opinion into effect. In the same year, the Mufti was assigned a third role, when Greece signed the Treaty of Constantinople with Turkey. Now, the Mufti was also the religious leader of Muslim citizens 9 Therefore, according to Islamic law and tradition, the Mufti has also the duty of collecting the zakt (obligatory charity), so that the minimum standards of livelihood can be guaranteed for the poorest citizens. The Mufti organises the zakt in order to redistribute the wealth from the wealthier citizens to the poorest ones.10
Vikr, K. S. (2005), Between God and the Sultan, C. Hurst & Co.: London.
Tsitselikis, K. Muslims in Greece, Islam and the European Union, Richard Potz, Wolfgang Wieshaider, eds., Peeters: Leuven, 2004.
10
Elimination of All Forms of Intolerance and Religious Discrimination is the only such document, which covers the principle of religious tolerance on a global basis to be followed by all the member states of the international community. 11 According to Article 3 of the Greek Constitution, the Greek state respects the right to freedom of religious beliefs for every Greek citizen. This article can be analysed into two parts. Firstly, the right to worship freely, either in private or in public, any religious community or creed whose practice does not represent a threat to the public order and morals. Secondly, the obligation of the Greek government to offer legal protection to churches, cemeteries, synagogues, monasteries and other religious institutions of the minorities. The concept of morality can be interpreted in various ways, depending on historical and cultural factors. Consequently, it might be different in every society, since there is no international standard, which can be approved by all religions and cultures around the world.12
Human
rights
The
application
of
Shariah
in
family
and
personal
law
matters,
within
the
Muslim
minority
in
Thrace,
as
many
researchers
observe,
has
a
tendency
to
disrespect
international
human
rights
norms.
The
implementation
of
the
Shariah
in
Western
Thrace
is
frequently
considered
as
a
retrogressive
and
anachronistic
institution
13
The
main
declaration
issued
by
the
human
rights
is
that
all
human
beings
have
equal
value
and
dignity,
regardless
of
gender,
religion
or
race.
Contemporary
human
rights
legislation
recognises
the
existence
of
several
group
rights.
Nonetheless,
it
generally
offers
adequate
protection
to
the
right
of
individuals
and
11
The State, the Law and Human Rights in Modern Greece, Vol. 9, Human Rights Quarterly, 1987.
13
Anagnostou, D. (1997), Religious Freedom and Minority Rights in the New Europe: The Case of the Muslim Courts in Western Thrace Paper delivered to the XV Modern Greek Studies, Association International Symposium 1997 on Modern Greece, Kent State University: Kent, Ohio, p. 5
considers a persons religious and cultural background as part of their distinct identity. On the contrary, the Islamic Law provides special benefits to men and disfavours women in legal cases of family disputes, divorces, inheritance and child custody.14 For example, in divorce cases, where a man can merely divorce his wife without any judicial proceedings being necessary, but Muslim women are not entitled to a similar right. Another practice in Islamic family law, which can be considered as a discriminatory rule against women, is drawn up in the law of inheritance. The general rules provide that daughters are entitled to half the share of sons. Furthermore, the process of divorce, according to Shariah, as well as the relationship between the married couple, seems to also disadvantage women, especially with regards to the principle of equality and the free development of the human personality. The form of divorce, according to which, a husband may unilaterally divorce his wife, without being required to show cause, and even without the need to recourse to any court or other authority, is apparently discriminatory, since it is not accessible to the wife. However, a Muslim wife does not have the right to file a divorce, except by court order on very precise and strict terms. These practices and ethics are in absolute contradiction with the Greek law and the customs of the country.15
Wedding
ceremonies
A
typical
example:
How
is
the
wedding
ceremony
performed
and
legally
confirmed?
In
June
2000,
the
qdi
of
the
Muslim
community
in
Xanthi
in
Western
Thrace,
the
Mufti,
issued
a
marriage
licence
for
virgin
women
according
to
the
Shariah.
(No
157/22.6.2000).16
It
includes
the
following
terms:
14
Naskou-Perraki Paroula (2011), The Law of International Organisations. Institutional dimensions (Sakkoulas Publishers, Athens) p. 53
15 16
Donation due to the social union through marriage: One [1] dress, one [1] golden chain (1 meter length), one [1] pair of earrings, five [5] golden bracelets, one [1] golden ring, one [1] watch, a mattress, a quilt and forty [40] kilos of copper. Donation due to dissolution of marriage: One hundred and one (101) golden pounds. Since we have settled the above cultural wedding differences, we do not see any religious or other impediment to the marriage between the virgin woman [], who is a Greek citizen and lives in [], and [] who is a Greek citizen and lives in []. This contract was executed by me, the Mufti of Xanthi. The wifes representatives The husbands representatives Such licences, with similar terms, contrary to the Greek law, the Constitution and the European legislation, are issued for every similar legal act between Muslim citizens of Thrace. If the Greek courts authorise the enforcement of these licences, they are valid. Most of the times they are authorised. When the Greek courts authorise their enforcement, this is supposedly happening because of the treaties that have been signed by Greece, from time to time, which are considered as binding. Is that the case? It is interesting that the two greatest institutions of the Greek justice disagree on whether this Treaty of Athens (1914) that legally covers the Shariah regime in Thrace, is valid or not. In two of its (similar) decisions, the Greek Council of State has decided that this Treaty of Athens is no longer valid, because it is utterly covered by the terms of the Treaty Lausanne (1923) which followed the population exchange between Greece and Turkey. The Supreme Court of Cassation has consistently held that The Treaty of Athens is the legal foundation of the minority protection in Greece.17
17
In his book Sacred law of Islam and Muslim Greek citizens -between communalism and liberalism, the Greek lawyer Giannis Ktistakis refers to this argument and agrees with the Councils view, emphasising that the existing distance from the Greek civil Code, as far as the Muslim minority of Thrace is concerned, is conflict with essential components of the contemporary human rights protection.
18
Tsitselikis, K The legal status of Islam in Greece, Die Welt des Islams No:44, 3, Brill Academic Publishers: Leiden 2004 p.p 112-113
19
Anagnostou, D. (1997), Religious Freedom and Minority Rights in the New Europe: The Case of the Muslim Courts in Western Thrace Paper delivered to the XV Modern Greek
Moreover, there is a new trend among the Muslims of Thrace: In inheritance matters and in division of matrimonial property, in case of a divorce, the two parties will first seek advice from the Mufti. If the two parties are not satisfied by the Muftis legal opinion, then they can bring the matter before the Civil court. Anagnostou states that, nowadays, most Muslims usually prefer to seise to Civil courts in order to resolve their inheritance matters, which have gradually fallen under the jurisdiction of civil courts.20
Studies, Association International Symposium 1997 on Modern Greece, Kent State University: Kent, Ohio, p.24
20
Anagnostou, D. Religious Freedom and Minority Rights in the New Europe: The Case of the Muslim Courts in Western Thrace Paper delivered to the XV Modern Greek Studies, Association International Symposium 1997 on Modern Greece, Kent State University: Kent, Ohio, 1997, p.24
21
Tsitselikis, K. Muslims in Greece, Islam and the European Union, Richard Potz, Wolfgang Wieshaider, eds., Peeters: Leuven 2004 p. 104
Greek judges do not essentially examine the essence of a decision when they have to decide on its unconstitutionality.22 Even though the jurisdiction of the Mufti is officially controlled by the Civil Court and the Court of Appeal, this control mechanism, in fact, interferes with the decisions of the Mufti only on exceptional occasions.
Unwritten
law
According
to
the
Hanafi
school
of
Law
(which
is
the
most
popular
school
for
Muslims
in
Western
Thrace),
one
apparent
reason
for
the
judges
of
the
Civil
Court
not
being
easily
familiar
with
Islamic
law
is
the
fact
that
the
applied
law
is
not
in
written
form.
It
is
neither
standardised
nor
codified.
During
Ottoman
times,
the
Mufti
gave
his
legal
opinion
(fatw)
on
matters
and
the
qdi
was
able
to
use
both
the
diverse
rules
of
the
Shariah
and
the
qnun,
which
was
a
legal
Code
drawn
up
by
the
Sultan.
However,
the
new
Mufti
of
Western
Thrace
issues
the
fatw
without
having
any
supplementary
authoritative
text,
issued
by
a
political
authority,
which
must
be
recognised
by
Islamic
religion.
Nevertheless,
there
are
obviously
different
approaches
regarding
the
status
of
the
Mufti.
The
Muslims
of
Western
Thrace
frequently,
contrary
to
the
term
courts,
claim
that
the
Mufti
does
not
issue
his
opinion
on
legal
cases
based
on
the
conventional
and
civil
sense
of
the
term;
his
role
is
primarily
consultative
and
compromising.23
22
AspasiaTsaoussi and Eleni Zervogianni Tsaoussi, A. and Zervogianni, E. Multiculturalism and Family Law: The Case of Greek Muslims, European Challenges in Contemporary Family Law, Katharina Boele-Woelki and Tone Sverdrup, eds., Intersentia: Mortsel, 2008, p.p 119120
23
Anagnostou, D. Religious Freedom and Minority Rights in the New Europe: The Case of the Muslim Courts in Western Thrace Paper delivered to the XV Modern Greek Studies, Association International Symposium 1997 on Modern Greece, Kent State University: Kent, Ohio, p.25
10
24 25
11
divorces
is
five
times
higher
than
Christian
divorces.26
It
is
not
quite
clear
if
Ktistakis
has
any
suggestion
as
an
alternative
solution,
except
for
the
abolition
of
this
concurrent
jurisdiction.
Aspasia
Tsaoussi
and
Eleni
Zervogianni
offer
another
thorough
critique
of
the
concurrent
jurisdiction.
In
their
study
Multiculturalism
and
Family
Law:
The
Case
of
Greek
Muslims,
based
on
the
fact
that
the
concurrent
jurisdiction
disfavours
Muslim
women,
they
suggest
that
there
is
a
better
alternative.
They
advise
the
Greek
citizens,
regardless
of
their
religion,
to
move
towards
mediation,
in
order
to
settle
their
family
matters.
According
to
them,
the
basic
principles
of
mediation
fulfil
the
overwhelming
moral
and
religious
needs
of
both
cultures
in
Western
Thrace.
Therefore,
they
provide
and
contain
the
common
values
of
the
two
competing,
yet
coexisting
systems.27
Their
critique
begins
with
the
almost
similar
principles
shared
by
the
minority
and
the
majority.
They
also
argue
that
it
is
possible
to
address
the
sensitivity
of
the
two
communities
in
a
single
jurisdiction
system
through
the
Alternative
Dispute
Resolution
(ADR)
procedure.
This
idea
seems
to
combine
the
mediation
of
the
Shariah
with
the
secular
principle,
which
requires
one
jurisdiction
for
all
citizens.
Tsaoussi
and
Zervogianni
claim
that
the
Qur'ans
solution
to
divorce
offers
the
most
typical
example.
As
they
mention,
in
Islam,
divorce
is
acceptable
only
when
there
are
major
irreconcilable
differences.
Divorce
has
to
be
the
last
solution,
since,
according
to
the
Prophet,
divorce
is
the
most
despicable
of
all
legal
action,
in
the
sight
of
God.
Hence,
the
Quran
encourages
the
parties
to
try
harder
to
reconcile,
in
the
following
steps:
(1)
The
parties
must
make
an
effort
to
resolve
their
disputes
and
confront
their
problems
together;
(2)
If
they
fail,
two
conciliators,
one
from
the
husbands
side
and
the
other
from
the
wifes
side,
should
be
sent,
in
order
for
them
to
settle
their
differences.
(3)
If
the
conciliators
efforts
also
fail,
divorce
may
be
granted.
26
Ibid p. 39
27
Tsaoussi, A. and Zervogianni, E. (2008), Multiculturalism and Family Law: The Case of Greek Muslims, European Challenges in Contemporary Family Law, Katharina Boele-Woelki and Tone Sverdrup, eds., Intersentia: Mortsel. p.223
12
According
to
Konstantinos
Tsitselikis,
the
application
of
Islamic
law
within
the
framework
of
a
European
legal
order
causes
some
incompatibilities.
In
certain
cases,
individual
rights
and
principles
of
equality
are
in
conflict
with
religious
freedom.28
It
is
evident
that
Tsitselikis,
in
many
of
his
conclusions,
considers
balancing
various
interests
as
a
high
priority.
He
claims
that
the
current
political
model
is
disadvantageous
not
only
to
citizens
who
bring
their
cases
before
the
Mufti,
but
also
to
the
authority
and
significance
of
this
Muslim
institution.
In
addition,
he
suggests
a
re-evaluation
and
reform
of
the
Mufti
institution,
with
equal
concern
for
the
Muslim
religious
traditions
and
their
freedoms,
as
well
as
for
the
fundamental
principles
and
individual
rights
of
the
European
legal
order.
His
last
suggestion
is
about
the
Muftis
qualifications
as
a
legal
leader.
Tsitselikis
is
suggesting
that,
apart
from
the
religious
education,
the
Mufti
candidate
should
be
equally
qualified
with
the
rest
of
the
judges,
so
as
to
avoid
a
debasement
of
his
role.
29
In
his
conclusive
statements,
Tsitselikis
says
that
the
social
balance
between
legally
imposed
norms
should
be
in
consideration,
and
that
these
norms
are
unknown
to
the
minority
society.30
Federation
of
Western
Thrace
Turks
in
Europe
(ABTTF),
which
has
its
headquarters
in
Germany,
has
submitted
a
similar
report
to
relevant
authorities,
right
after
the
release
(11
March
2010)
of
the
2009
Human
Rights
Report:
Greece,
written
by
the
U.S.
Department
of
State,
Bureau
of
Democracy,
Human
Rights,
and
Labor.
The
report
includes
many
of
the
issues
on
the
topic
of
the
Muslims
in
Western
Thrace
that
have
been
puzzled
by
the
U.S.
report.
In
the
section
regarding
women,
the
report
states
that
If
the
government
restrained
the
powers
of
the
Mufti
(who
has
undertaken
religious
duties)
and
if
it
abolished
the
recognition
of
Shariah,
it
would
be
a
violation
of
its
obligations,
which
arise
from
international
treaties
in
28
Tsitselikis, Konstantinos. The legal status of Islam in Greece, Die Welt des Islams No:44, 3, Brill Academic Publishers: Leiden. 2004, p.p 121-122
29 30
13
which Greece has participated. Nonetheless, this does not automatically mean that the Turkish Minority of Western Thrace disrespects any concern about the application of Shariah in the area of Thrace, which is meticulously stated in the report. ABTTF reminds us that Islamic inheritance law has a restricted application in Western Thrace, and it is not a part of the Turkish Minoritys tradition.31
Conclusions
The
position
of
a
Mufti
in
the
Greek
legal
order
is
characterised
by
a
fundamental
contradiction
between
two
factors,
which
are
equally
based
on
respect
for
human
rights:
The
problem
which
is
caused
by
the
major
conflict
between
Islamic
law
(Shariah)
and
Greek
Law,
the
current
sense
of
justice
in
Greece
and
the
international
conventions,
signed
by
Greece,
for
the
protection
of
human
rights.
The
right
of
the
Muslim
minority
in
the
Greek
region
of
Thrace
to
preserve
their
rights,
which
are
established,
in
their
religious
law.
These
rights
are
important
to
this
minority,
in
order
to
maintain
its
coherence
as
a
community.
According
to
its
current
legal
situation,
a
Mufti
has
a
dual
role:
On
the
one
hand,
he
is
the
highest
official
of
religious
law:
He
has
a
supervising
role
over
mosques,
prayer
leaders
per
mosque,
cemeteries
and
waqfs.
In
addition,
he
offers
his
advice
and
guidance
to
Muslims,
he
controls
all
charity
work
and
he
performs
wedding
ceremonies.
On
the
other
hand,
he
is
a
qdi
(a
religious
judge),
having
control
over
the
differences
between
Greek
Muslims
who
live
on
his
district.
These
differences
are
related
to
only
a
few
issues
of
Family
law
and
Inheritance
31
Federation of Western Thrace Turks in Europe (2010), Parallel Report by ABTTF on the 2009 Human Rights Report: Greece: https://www.abttf.org/images/Raporlar/US-2010Human-Rights-Report-on-Greece_Parallel-Report-by-ABTTF.pdf
14
law, which are crucial issues, as far as human rights are concerned. The legal opinions and edicts, which are issued by the Mufti, are estimated by the Court of Common Pleas, and thus, become enforceable.
Problems
If
we
examine
the
current
law,
both
the
Substantive
and
the
Procedural
law,
we
will
discover
the
following
three
categories
of
problems,
which
inhibit
the
Muftis
work
and
justice:
In
many
cases,
there
is
a
poor
control
of
constitutionality
and
contradiction
between
the
Muftis
legal
opinions
and
European
or
public
policy.
The
application
of
Shariah
causes
serious
problems,
if
it
is
controlled
according
to
the
basic
principles
of
the
law,
such
as
equality,
or
childrens
and
womens
best
interest
(See
relevant
binding
International
law
on
human
rights,
International
Covenant
on
Civil
and
Political
Rights,
Convention
on
the
Rights
of
the
Child,
Convention
on
the
Elimination
of
all
forms
of
Discrimination
against
Women,
etc.)
The
Greek
civil
courts
interpret
in
a
strict
way
the
Muslim
term
Greek
Muslim
citizens
in
the
district
of
a
mufti,
according
to
legislation
1920/1991.
As
a
result,
the
Greek
courts
do
not
authorise
the
enforcement
of
the
Muftis
legal
decisions
in
regard
to
a
wedding
between
a
Greek
and
a
foreign
citizen
or
a
wedding
between
inhabitants
outside
the
Muftis
district.
Therefore,
the
dissolution
of
a
marriage
is
impossible.
Since
2008,
there
is
an
equally
strict
interpretation
on
the
Muftis
jurisdiction
over
child-custody
cases.
As
a
result,
the
Muftis
legal
opinions
on
such
cases,
in
case
of
a
divorce,
are
not
been
complied
with.
15
Legislative
gaps
The
optional
jurisdiction
of
the
Mufti
either
is
not
provided
for
or
is
not
applicable.
Very
often,
civil
courts
bring
cases
before
the
Mufti,
as
an
exclusively
competent
body.
In
cases
where
the
one
party
approaches
the
civil
courts
and
the
other
party
approaches
the
Mufti,
there
is
no
provision
for
such
cases.
In
cases
ruled
by
the
Mufti,
there
is
no
provision
for
a
second-degree
trial
or
an
annulment
of
his
rulings.
Neither
the
legal
representation,
nor
the
principle
of
equality
of
the
parties,
nor
the
courts
statement
of
the
reasons
for
its
decisions
is
compulsory.
If
we
compare
the
application
of
Islamic
law
in
three
Muslim
districts
of
Greece,
there
is
a
difference
in
the
quality
of
justice.
The
application
of
Islamic
law
in
Komotini
is,
to
an
evident
degree,
the
best.
***
References
Tsitselikis
K.
2004,
The
legal
status
of
Islam
in
Greece,
Die
Welt
des
Islams
No:44,
3,
Brill
Academic
Publishers:
Leiden.
Tsitselikis
K.
2004,
Muslims
in
Greece,
Islam
and
the
European
Union,
Richard
Potz,
Wolfgang
Wieshaider,
eds.,
Peeters:
Leuven
Ktistakis
Yannis,
2006,
The
Holy
Law
of
Islam
and
the
Greek
Muslim
Citizens
(Athens/Thessalonica:
Sakkoulas
Publishers.
Boussiakou
I.
2008,
Religious
Freedom
and
Minority
Rights
in
Greece:
the
case
of
the
Muslim
minority
in
western
Thrace,
the
Hellenic
Observatory,
London
School
of
Economics,
Greece
Paper
No
21:
London.
16
Anagnostou D. 1997, Religious Freedom and Minority Rights in the New Europe: The Case of the Muslim Courts in Western Thrace Paper delivered to the XV Modern Greek Studies, Association International Symposium 1997 on Modern Greece, Kent State University: Kent, Ohio. Mekos Zafiris, 1991, The Muftis jurisdiction and the Greek Law (Sakkoulas Publishers, Athens/ Kommotini, 1991. Greek Helsinki Monitor 2006, Parallel Report on Greeces Compliance with the UN Convention on the Elimination of All Forms of Discrimination against Women, http://www.iwraw-ap.org/resources/pdf/Greece(1).pdf Kotzabassi Athina, Family Legal Relationships among Greek Muslims, (Athens/Thessalonica, 2001, www.kethi.gr), Systematic legal approach to this matter, developed by the Research Centre on Equality Issues (Kethi). Tsitselikis Konstantinos, The Mufti's position in the Greek legal order, In: D. Christopoulos (eds), Legal issues of religious alterity in Greece, Athens: Kritiki/KEMO MAP OF GREECE WITH WESTERN THRACE IN GREEN
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